The oral argument before the Supreme Court is fascinating to hear.
Alexander Bickel, the Times’ lawyer, appears as something of a waffler,
conceding ground to the government that the Post’s attorney, William
Glendon, hastens to recover. For example, Bickel makes much of the
absence of a specific statute passed by Congress to allow prior restraint:
“I have conceded, for the purposes of this argument, that some limitations,
some impairment of the absoluteness of that prohibition [the First Amendment]
is possible, and I argue that, whatever that may be, it is surely at its
very least when the President acts without statutory authority….” (p. 49
of the transcript) One Justice comments, “That is a very strange
argument for the Times to be making. The Congress can make all this
illegal by passing laws.” Justice Stewart (p. 45) asks what Glendon
has called a “miserable, brilliant” hypothetical: What if the disclosure
“would result in the sentencing to death of a hundred young men whose only
offense had been that they were nineteen years old and had low draft numbers.”
Bickel fumbles: “I wish there were a statute that covered it.” (p.
46) Glendon, in contrast, points out: “The government has not
yet brought anything like that case to your Honors, nothing like that.
What we have heard, your Honor, is much more in the nature of conjecture
and surmise.” (p. 54)
Interestingly, Solicitor General Erwin Griswold conceded a great deal
when he highlighted the government’s willingness to do an expedited declassification
review of the Pentagon Papers, in “a minimum of 45 days.” Griswold
allowed as how “There is not the slightest doubt in my mind that there
has been as long as I can remember, which is quite a while, massive over-classification
of materials, and there has been much too slow review to provide declassification.”
(p. 22 of the transcript) But at the same time, Griswold endeavored
to convince the Court that 11 specific items in the Pentagon Papers would
cause “great and irreparable harm to the security of the United States”
(p. 30) Griswold went on to say, “I haven’t the slightest doubt myself
that the material which has already been published and the publication
of the other materials affects American lives and is a thoroughly serious
matter. I think to say that it can only be enjoined if there will
be a war tomorrow morning, when there is a war now going on, is much too
narrow.” (p. 31)
Some 28 years after these arguments, Griswold recanted his entire position
in an op-ed published in the Washington Post (“Secrets Not Worth
Keeping: The Courts and Classified Information,” 15 February 1989, p. A25):
“I have never seen any trace of a threat to the national security from
the publication. Indeed, I have never seen it even suggested that
there was such an actual threat…. It quickly becomes apparent to any person
who has consideration experience with classified material that there is
massive overclassification and that the principal concern of the classifiers
is not with national security, but rather with governmental embarrassment
of one sort or another. There may be some basis for short-term classification
while plans are being made, or negotiations are going on, but apart from
details of weapons systems, there is very rarely any real risk to current
national security from the publication of facts relating to transactions
in the past, even the fairly recent past. This is the lesson of the
Pentagon Papers experience, and it may be relevant now.”
The only mystery after the oral argument was how the Court’s center
would vote. Chief Justice Burger, along with Justices Harlan and
Blackmun, supported the government’s position. Justices Black, Douglas,
Brennan and Marshall opposed the government’s claim. In effect, then,
the swing votes were Justices Stewart and White. Their two opinions
– Stewart’s with White, and White separately – are worth close attention,
because both assumed that real damage would result from publication of
the Pentagon Papers, yet they refused to countenance prior restraint on
publication, given the First Amendment’s protection of the press.
For example, Justice White wrote in his separate opinion: “I do
not say that in no circumstances would the First Amendment permit an injunction
against publishing information about government plans or operations.
Nor, after examining the materials the Government characterizes as the
most sensitive and destructive, can I deny that revelation of these documents
will do substantial harm to public interests. Indeed, I am confident
that their disclosure will have that result. But I nevertheless agree
that the United States has not satisfied the very heavy burden that it
must meet to warrant an injunction against publication in these cases….”
White then went on in his opinion to explore, even encourage, the criminal
prosecution of the Times and the Post on grounds of violating several
sections of the Criminal Code. White specifically cited section 793(e)
of 18 U.S.C., on unauthorized possession of a document relating to the
national defense, as well as sections 797 (graphical representations of
military installations) and 798 (code and cryptographic information), and
wrote: “I would have no difficulty in sustaining convictions under
these sections on facts that would not justify…the imposition of a prior
restraint.” This, of course, is exactly the route taken by the Department
of Justice in prosecuting and convicting Navy analyst Samuel Morison in
the early 1980s, for leaking a U.S. satellite photo of a Soviet aircraft
carrier to a London publication. Morison was subsequently pardoned
by President Clinton in January 2001.
Justice Stewart’s opinion, joined by White, set the standard for what
the Supreme Court would countenance for national security-based restrictions
on press freedom – disclosure must “surely result in direct, immediate,
and irreparable harm to our Nation, or its people.” Stewart wrote:
“We are asked, quite simply, to prevent the publication by two newspapers
of material that the Executive Branch insists should not, in the national
interest, be published. I am convinced that the Executive is correct
with respect to some of the documents involved. But I cannot say
that disclosure of any of them will surely result in direct, immediate,
and irreparable harm to our Nation, or its people. That being so,
there can under the First Amendment be but one judicial resolution of the
issues before us.”
Stewart’s opinion offers profound insights even today, given Congress’s
approval last year (and President Clinton’s veto) of a bill criminalizing
leaks of any “properly classified” information – in effect, an official
secrets act. Justice Stewart described Executive power over security
classification, and the uneasy balance between the values of democratic
governance and Executive claims of confidentiality in matters of diplomacy
and defense. Stewart wrote: “In the absence of the governmental
checks and balances present in other areas of our national life, the only
effective restraint upon executive policy and power in the areas of national
defense and international affairs may lie in an enlightened citizenry –
in an informed and critical public opinion which alone can here protect
the values of democratic government.” Stewart described Executive
power over internal security as “an awesome responsibility, requiring judgment
and wisdom of a high order. I should suppose that moral, political,
and practical considerations would dictate that a very first principle
of that wisdom would be an insistence upon avoiding secrecy for its own
sake. For when everything is classified, then nothing is classified,
and the system becomes one to be disregarded by the cynical or the careless,
and to be manipulated by those intent on self protection or self-promotion.
I should suppose, in short, that the hallmark of a truly effective internal
security system would be the maximum possible disclosure, recognizing that
secrecy can best be preserved only when credibility is truly maintained.”
NOTE: The audio clips are in RealAudio format.
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Audio Clips of Oral Arguments
Oral argument of Solicitor General Erwin Griswold,
June 26, 1971
Oral argument of New York Times attorney
Alexander Bickel, June 26, 1971
Oral argument of Washington Post attorney
William Glendon, June 26, 1971
Concluding statement of Solicitor General Griswold,
June 26, 1971
Click here to see the written transcript for
the two hour and 13 minute-long oral argument.
Supreme Court Documents
1. The Court’s decision and opinions by
each of the Justices
2. Brief for the United States
3. Brief for the New York Times
4. Brief for the Washington Post
5. Amicus brief of 27 members of Congress